Constituents before Assembly Under what circumstances do new constitutions improve a nation’s level of democ- racy? Between 1974 and 2014, democracy increased in 77 countries following the adoption of a new constitution, but it decreased or stayed the same in 47 others. This book demonstrates that increased participation in the forming of constitu- tions positively impacts levels of democracy. It is discovered that the degree of citizen participation at the “convening stage” of constitution-making has a strong effect on levels of democracy. This finding defies the common theory that levels of democracy result from the content of constitutions, and instead lends support to “deliberative” theories of democracy. Patterns of constitutions are then compared, differentiating imposed and popular constitution-making processes, using case stud- ies from Chile, Nigeria, Gambia, and Venezuela to illustrate the dynamics specific to imposed constitution-making, and case studies from Colombia, Ecuador, Egypt, and Tunisia to illustrate the specific dynamics of popular constitution-making. Todd A. Eisenstadt is Professor of Government at American University. His democ- ratization and rule of law scholarship includes his award-winning dissertation book Courting Democracy in Mexico: Party Strategies and Electoral Institutions (Cambridge, 2004). His research has been funded by Fulbright, the Ford and Mellon Foundations, and the National Science Foundation. He has held visiting appoint- ments at El Colegio de México, Harvard University, the University of California, San Diego, and the Latin American Social Science Faculty (FLACSO) in Ecuador. A. Carl LeVan is Associate Professor in the School of International Service at American University in Washington, DC. He is the author of Dictators and Democracy in African Development: The Political Economy of Good Governance in Nigeria (Cambridge, 2015) and co-editor of African State Governance: Subnational Politics and National Power (2015). Prior to receiving his Ph.D. in Political Science from the University of California – San Diego, he worked as a legislative director in the US Congress and later worked as a technical advisor to Nigeria’s National Assembly. Tofigh Maboudi is Assistant Professor in the Department of Political Science at Loyola University Chicago. His research on constitutional reform processes has appeared in the American Political Science Review and Political Research Quarterly. Prior to receiving his Ph.D. in Political Science from American University in Washington, DC, he worked as a foreign media consultant in Tehran, Iran, where he received his Master’s degree in North American Studies. During his Ph.D. program, he received several awards including the American University’s Award for Outstanding Scholarship at the Graduate Level. Comparative Constitutional Law and Policy Series Editors Tom Ginsburg, University of Chicago Zachary Elkins, University of Texas at Austin Ran Hirschl, University of Toronto Comparative constitutional law is an intellectually vibrant field that encom- passes an increasingly broad array of approaches and methodologies. This series collects analytically innovative and empirically grounded work from scholars of comparative constitutionalism across academic disciplines. Books in the series include theoretically informed studies of single constitutional jurisdictions, comparative studies of constitutional law and institutions, and edited collections of original essays that respond to challenging theoretical and empirical questions in the field. Books in the Series Constituents before Assembly: Participation, Deliberation, and Representa- tion in the Crafting of New Constitutions Todd A. Eisenstadt, A. Carl LeVan, and Tofigh Maboudi Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka Benjamin Schonthal Assessing Constitutional Performance Tom Ginsburg and Aziz Huq Engaging with Social Rights Brian Ray Constitutional Courts as Mediators Julio Ríos-Figueroa Perils of Judicial Self-Government in Transitional Societies David Kosař Making We the People Chaihark Hahm and Sung Ho Kim Radical Deprivation on Trial Cesar Rodríguez-Garavito and Diana Rodríguez-Franco Unstable Constitutionalism edited by Mark Tushnet and Madhav Khosla Magna Carta and Its Modern Legacy edited by Robert Hazell and James Melton Constitutions and Religious Freedom Frank Cross International Courts and the Performance of International Agreements: A General Theory with Evidence from the European Union Clifford Carrubba and Matthew Gabel Reputation and Judicial Tactics: A Theory of National and International Courts Shai Dothan Social Difference and Constitutionalism in Pan-Asia edited by Susan H. Williams Constitutionalism in Asia in the Early Twenty-First Century edited by Albert Chen Constitutions in Authoritarian Regimes edited by Tom Ginsburg and Alberto Simpser Presidential Legislation in India: The Law and Practice of Ordinances Shubhankar Dam Social and Political Foundations of Constitutions edited by Denis J. Galligan and Mila Versteeg Consequential Courts: Judicial Roles in Global Perspective edited by Diana Kapiszewski, Gordon Silverstein and Robert A. Kagan Comparative Constitutional Design edited by Tom Ginsburg Constituents before Assembly Participation, Deliberation, and Representation in the Crafting of New Constitutions TODD A. EISENSTADT American University A. CARL LEVAN American University TOFIGH MABOUDI Loyola University Chicago University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 4843/24, 2nd Floor, Ansari Road, Daryaganj, Delhi – 110002, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107168220 DOI: 10.1017/9781316717080 © Todd A. Eisenstadt, A. Carl LeVan, and Tofigh Maboudi 2017 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2017 Printed in the United States of America by Sheridan Books, Inc. A catalogue record for this publication is available from the British Library. ISBN 978-1-107-16822-0 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Eisenstadt dedicates this book to his daughters, Natalia and Paola, with great pride in how they are learning to negotiate adulthood with keen intellects, empathy, and strong constitutions. LeVan dedicates this book to his friend and mentor, Rep. John Conyers, Jr., for his unwavering efforts to make unheard voices heard in the din of American democracy. Maboudi dedicates this book to his parents, Abdul-Karim and Nosrat, for their sacrifice and foresight, and for founding his life’s constitution. Contents List of Figures page xi List of Tables xiii Introducing Constitutions as Political Process xv 1 A Call to Pens (Even If Not Mightier than Swords): How Context and Process Prevail over Content in Constitutional Change 1 2 Making the Constituents King: How Constituent Deliberation on New Constitutions Democratizes More than Mere Citizen Participation 25 3 Parchment Politics: The Importance of Context and Conditions to the Drafting of Constitutions 55 4 The Logic of “Top-Down” Elite Constitutionalism: How Imposed Processes May (But Usually Do Not) Produce Better Democracy 84 5 The Logic of “Bottom-Up” Constitutionalism: How Popular Processes Tilt the Odds in Favor of Democracy 114 6 Interest Groups Versus Individual Participation, and the Gap Between Ideal Constitutional Process and Real-World Practices 143 Appendix A — Additional Statistical Analyses as Checks on Robustness of Models 165 Appendix B — Coding of Pathways According to 27 Possible Combinations 171 ix x Contents Appendix C — List of the Constitutions with the Most Recurring Pathways 173 References 175 Index 193 Figures 1.1 Pathways of constitution-making and level of democracy since 1974 page 19 2.1 Process variable 32 2.2 Democracy before and after constitution promulgation based on convening stage 38 3.1 Regime types and modalities of convening stage 68 3.2 Democratizing effects of constitutions under different regimes 69 3.3 Impact of constitutions on change in level of democracy over time 75 3.4 Pathways of constitution-making processes based on regime types 77 xi Tables 1.1 Popular and imposed case studies page 22 2.1 Coding criteria 30 2.2 Participation hypothesis and level of democracy 34 2.3 Significance of convening, relative to debating and ratification 42 2.4 Impact of process and content of constitutions on democracy 44 3.1 “Popular” and “imposed” constitutional processes 71 A.1 Heckman selection model 165 A.2 Participation hypothesis and level of democracy stratified by regime type 166 A.3 Stage one of the 2SLS models 167 A.4 Stage two of the 2SLS models 167 A.5 Correlation among the three-stage variables 168 A.6 Test of collinearity 168 A.7 Large sample model 169 A.8 Model using bootstrapped